IMPORTANT POINT
Power to quash proceedings at initial stage have to be exercised sparingly with circumspection and in rarest of rare cases.

Sunita Gupta, J.—Vide this common order, I shall dispose of Cr. M.C. Nos.3746/

2013,3756/2013,3757/2013,3758/2013 and 4619/2013, as all these petitions are between the same parties and substantially common question of law and facts are involved in them. For the sake of convenience, I shall take up Crl. M.C.No.3746/2013.

2. By virtue of this petition, the petitioners are seeking quashing of the impugned

summoning order dated 08.04.2013 passed by the learned Metropolitan Magistrate,

Dwarka Courts, New Delhi in Complaint Case No.229/13 titled The Hongkong and

Shanghai Banking Corporation Ltd. v. M/s. Adigear International & Ors., complaint

and proceedings emanating therefrom, inter alia, on the allegations that the petitioners

are arrayed as accused in the said complaint u/s.138 of the Negotiable Instruments Act

(for short ‘N.I Act’) filed by respondent No.2 pleading that in partial discharge of their

liability, the petitioner No.1 through petitioner No.2 issued a cheque dated 15. 12.20 12 for Rs.50 lakhs drawn on State Bank of Bikaner and Jaipur in favour of respondent No.2. The said cheque was dishonoured by the banker of petitioner No.1 for the reason “payment stopped by drawer”. A legal demand notice dated 18.12.2012 was sent, followed by a complaint u1s.138 of the N.1. Act. After the respondent tendered pre-summoning evidence, vide impugned order dated 08.04.2013, the learned Trial Court took cognizance of the offence u/s.138 of the N.I Act and the petitioners were summoned.

3. The impugned order is challenged, inter alia, on the ground that the same has

been passed in a mechanical and cyclostyled manner without considering the relevant

record. Before summoning the accused, it should be considered as to whether an offence has been made out or not. The requirement of Section 138 of the N.I Act is that the person sought to be made liable should have issued cheque in favour of another person. When the averments of fact in this regard are lacking, the summoning order cannot be sustained. Had the learned M.M perused the record, he would have come to know that the original cheque is not issued by petitioner No.2 on behalf of petitioner No.1 in favour of respondent No.2 but in favour of petitioner No.1 itself i.e. self drawn cheque thereby transferring funds from one of its accounts in State Bank of Bikaner and Jaipur to its own account maintained with HSBC Ltd. i.e. respondent No.2. No case is made out against the petitioners and, therefore, the petitioners cannot be made to suffer the ignominy of protracted trial, as such the impugned summoning order dated 08.04.2013, complaint and proceedings emanating therefrom be quashed/set aside.

4. When the matter first came up for hearing, vide order dated 11.09.2013 it was

ordered that the Trial Court shall adjourn the matter to some other day after the date fixed in this case and notice was ordered to be issued to respondent No.2 Respondent No.2 moved an application bearing Crl.M.A.15633/13 for vacation of the order dated 11.09.2013.

5. I have heard Mr. Sandeep Sethi, Senior Advocate for the petitioners duly assisted

by Mr. Nilesh Sawhney, Advocate and Mr. Neeraj Kishan Kaul, Senior Advocate for

respondent No.2 duly assisted by Mr. Vikrarn Singh Bakshi, Advocate, at great length

and have perused the record.

6. It was submitted by learned counsel for the petitioners that a complaint u/s.138

of the N.I. Act can be filed either by the payee or holder in due course. He referred to

Sections 9,13,15 and 16 of the N.I. Act. It was submitted that the cheque was in favour

of the petitioners and did not bear any endorsement, much less in favour of the

complainant. The complaint is completely silent that they are holders in due course or

that there was any endorsement on the cheque in their favour. Rather the averments

‘made in the complaint are to the effect that the complainant is the payee of the cheque

which is not borne out from the cheque itself. Therefore, the complaint itself is not